RAMASRAY RAI Vs. LAL BAHADUR RAI

JUDGEMENT

(1.) This second appeal arises out of a suit instituted by the plaintiff, respondent for specific performance of a contract for sale in respect of half of plot No. 642 (.03 acre in area) in village Ganghar. The plot lies in front of the houses of the parties. It appears that the plaintiff prosecuted some of the defendants for cutting bamboos from the disputed plot which he claimed as his and which, according to the defendants, belonged to defendant 4 having been purchased by him. During the pendency of the criminal case, obviously at the suggestion of the Magistrate who was trying the case, the parties referred the matter in dispute between them to the arbitration of the landlord of the parties, Babu Kailash Bihari. At his instance it was agreed that half of the plot should be sold by the defendants to the plaintiff for Rs. 25.

(2.) Thereafter the accused were acquitted in the criminal case and four months later defendant 1 received Rs. 25 from the plaintiff as the price of half of the plot to be sold and acknowledged it. The defendants however did not execute the sale deed and the plaintiff instituted the present suit. The trial Court dismissed the suit holding that the consideration of the contract was illegal, as against public policy under Section 23, Contract Act. On appeal by the plaintiff, the learned Subordinate Judge has reversed the decree of the trial Court, has decreed the suit and ordered the defendants to execute the sale deed. Defendant 4, in whose name the land stands, has preferred this second appeal. Two points arise in this appeal. One is whether defendant 4, in whose name the land stands and who was admittedly no party to the agreement, is bound by it and can be compelled to execute the sale deed; and the second is whether the contract is void on account of the fact that the consideration was stifling of the criminal prosecution for a non-compoundable offence. I shall take up the second point first.

(3.) The appellants mainly relied upon the decision of their Lordships of the Judicial Committee in Kamini Kumar Basu V/s. Birendra Nath . In my opinion this case has got no application. In that case, a criminal case under various non-compoundable Secs.of the Indian Penal Code was pending and then a compromise was effected. Thereafter the complainant refused to adduce any evidence in the case and the prosecution was dropped. In the present case according to the evidence of defendant 1 himself, the criminal case had practically come to an end. When the agreement was arrived at, Ramsewak Rai, defendant 1, deposes as follows as to what happened in the criminal case: The Court said that we had nothing to do with the case and have been falsely implicated, and that we might be ruined by payment of costs. The word "we" is obviously a mistake for complainant as he later on says: The Court did not say that I should be paid Rs. 25 as costs, he said that the case was false and should be compromised.